Wednesday, August 27, 2008

I’ve written before about Laurence Gonzales’ Deep Survival, his book about “Who Lives, Who Dies, and Why.” Reading it recently, I was reminded of an analogy Gerry Spence frequently uses in describing lawyers and what he tries to teach at Trial Lawyer’s College in DuBois, Wyoming. From the Publisher’s Weekly review of his book “Win Your Case:”

Spence's cowboy Uncle Slim once said, "You can't get nowhere with a thousand-dollar saddle on a ten-dollar horse." Noted trial lawyer Spence ( How to Argue and Win Every Time) applies this principle to anyone making a case, whether to a jury, a customer or a boss. Tricks and techniques are the high-priced saddle, he says; more important is the person making the case. Thus his method focuses on "the power of being genuine."

So the idea that “tricks and techniques are the high priced saddle” and that we should focus more on the horse- on ourselves as lawyers- is one that is taught at TLC and at seminars across the country: The jury won’t buy into your and will in fact see right through your “tricks and techniques.” But if you’re genuine, if you work on the “horse” and work on really caring about your client and do so in a genuine way, you’ll carry your client more successfully is the teaching.

Gonzales book on survival contains a similar horse example but he equates the “jockey” on the horse to reason and the “horse” to emotion. As humans, we’re the combination of these two forces. Guess who’s in charge?

The human organism, then, is like a jockey on a thoroughbred in the gate. He’s a small man and it’s a big horse, and if it decides to get excited in that small metal cage, the jockey is going to get mangled, possibly killed. So he takes great care to be gentle. The jockey is reason and the horse is emotion, a complex of systems breed over eons of evolution and shaped by experience, which exist for your survival. They are so powerful, they can make you do things you’d never think to do, and they can allow you to do things you’d never believe yourself capable of doing. The jockey can’t win without the horse, and the horse can’t race alone. In the gate, they are two and it’s dangerous. but when they run, they are one, and it’s positively godly.

They both are, or at least should be. Lack of survival (becoming dead) happens, in Gonzales’ view, when the “horse” of emotion takes over for the jockey completely, which is a typical reaction when we’re confronted with our own imminent deaths.

He describes search and rescue teams recovering scuba diving accident victims drowned with full oxygen tanks on their backs. The reason? When panic sets in, an instinct to remove all things from the mouth kicks in, and these panicked, “horse” (pure emotion)-driven victims pull their own breathing apparatuses out, controlled completely by emotion as they pull out their sources of survival and suck in huge breaths of water.

It’s easy to know what to do when you’re above the surface, however. The trick, the survival technique, is to not let the “horse” run wild. Easier said than done but still essential.

I wonder, however, if the analogy of the horse and jockey, of emotion and reason, helps us as lawyers as well. Our training tells us, and the courtroom procedures are built on the belief that, people arrive at decisions using only their intellect. Consider the judge instructing the jury to “disregard” certain testimony, as if their intellect could simply erase that factor from their purely rational analysis. Isn’t that indicative of a system that pretends the “jockey” is alone, that the “horse” is simply ignored by rational people? Isn’t that naive, however, to believe that emotion won’t play a part or that the jury will simply disregard the witnesses’ mention of something that wasn’t supposed to come up?

Don’t we, as people, arrive at decisions on the horse of emotion and then justify our arrival as if we got there rationally? Don’t we get there on the horse and then, once we’re there, pretend our emotions weren’t the driving force?

Monday, August 25, 2008

When I talked to the Exec. Director of the Nebraska Criminal Defense Attorneys Association last week and described how I recently passed the one year mark on starting my own practice, she told me a story.

When a new lawyer couldn't find a job out of law school and started his own practice, he came to court with his first criminal client. After the arraignment, the crusty old judge glared down at the young lawyer and asked, "Did you remember to comply with Rule Number One?" The lawyer stumbled over his words, wondering whether the judge was referring to the Local Rule he hadn't bothered to read and fearful that he'd look bad in front of his first client, like he didn't even know even the first rule.

"Umm, I'm not sure I know which rule you're referring to, your honor," he mumbled, shuffling through the papers as if he might find it there.

"Rule Number One, son," the judge said, "The one rule that all attorneys need to know to be successful in the practice of law; you don't know that rule?" The courtroom fell silent.

"No, your honor. I'm sorry. I guess I not aware of that particular rule, but I'll review it and comply with it the next time I'm before you," said the new lawyer, wondering where he'd even begin to look for this rule.

"You won't find that rule in any book," boomed the judge, obviously intent on teaching the new lawyer a lesson he'd never forget in front of the entire courtroom who looked on, wondering, as he did, what the rule meant.

"Rule number one," whispered the judge, "is to get paid first, before you come to court."

I heard some version of this rule many times, but still haven't complied with it very well. I have at least learned something over this year, albeit the hard way, however, and find it a lot easier to say no now than when I first started out, remembering all the time I spend dealing with people whose checks are in the mail, who are getting paid next week, or whose relative will bring me a check on the first of the month.

I'm still kind of a sucker for a sob story, but I'm trying to follow the rule.

Wednesday, August 20, 2008

Several years ago I represented a really bad drunk. When I met with him at the jail to discuss how and why he came to be charged with both indecent exposure and disorderly conduct in an event that took place right outside a library I used to stop at frequently, I couldn’t wait to hear the story.

I’ve forgotten his name, but he was a pretty decent guy with a terrible drinking problem; a “low bottom drunk” who was way down and still sliding fast. He described wanting a bottle of vodka and of “raising” the money in about an hour.

“Oh, it’s easy,” he said, as if describing a cooking technique. “You just find a busy street, make up a sign and in a couple hours, you got enough for a bottle.” He described how quickly people will give you a buck or two and how it doesn’t take many people like that to gather enough for what you need.

I thought of the times I’d been one of the people handing out a buck and felt like a sucker for thinking that I bought a meal for a hungry man. Turns out that, at least for this guy, the funds went for liquid rather than solid food, fed an addiction rather than an appetite.

I had to laugh, both at myself for my naivete and at him for discovering such a humiliating but efficient means to what made him, well, drunk, and which, at least for now, made him feel happy. Not exactly what Jefferson had in mind in including the “Pursuit of Happiness” in the Constitution, but he caught a temporary happy feeling nonetheless.

But, as you might have guessed from his current location, this time he consumed a little to much happiness and ended up pursued by the cops who pulled up his pants before taking him to the “correctional center.”

It’s a long story, but to make it short, the bottle made him feel playful and the light snow on the ground made for the perfect plaything. When he got in a snowball fight with the kids walking home from school, he was too drunk to play very well. Tragically, during the skirmish, perhaps during a particularly strenuous throw, his pants somehow cascaded down, eventually reaching his ankles and giving rise to the charge of indecent exposure, adding insult to injury.

Needless to say, the kids clearly won the snowball fight but suffered the agony of defeat anyway, witnessing a homeless man’s unwashed ass rolling around in the snow outside the Omaha Public Library in broad daylight, burning on their retinas an image that’ll take years of therapy to dislodge. Nancy Grace, if she reads this, has already hit the speed dial to the Center for Missing and Exploited Children. The Humanity...

Mark was very concerned, surprisingly, about getting the indecent exposure charges dismissed, telling me that, if I checked with the police, they’d confirm his story that he hadn’t intended to show anything to the schoolchildren except a little innocent fun. It just turned out that way when the lethal combination of snowball fight, vodka and beltlessness combined in the perfect storm of humiliating coincidence.

When I wondered out loud why he was so adamant about this charge being dropped, his response surprised me. He had kids about these kids’ age who went to school in Omaha and he didn’t want them to see their father’s name or to have their name associated with such an embarrassing crime. I wanted to say, “Well, how do you think they feel about you not being to keep your pants up out in front of the library?” but I kept my mouth shut.

As he predicted, I had no trouble convincing the prosecution to dismiss the indecent exposure charge and he was out in a few days, convicted of disorderly conduct and given “time served” by a judge who, like me, viewed him as more pathetic than pathological.

But what stuck with me, beyond this case, was his description of the way he used people’s generosity and wish to feed people to feed his alcohol addiction. He sort of stumbled onto the “perfect crime” for a hardcore drunk, panhandling for food and playing on people’s altruistic sense to feed what kept him out on the streets, his need to feed his own addictive, destructive behavior.

I hope he eventually got off the streets. I’m not in the “program” but I’ve seen enough of it to be in awe of those who are truly touched by it. I once picked up the “big book” and read about a time when Bill W. had to give Dr. Bob a few beers to calm his D.T.’s so that he could perform a scheduled surgery, after he’d fallen off the wagon at an AMA convention. From AA to AMA and then back to AA, for some beers before surgery? Cunning, baffling, powerful addiction indeed.

But I’ve rarely, probably never, given money to anonymous homeless people since that day, fearful that, like him, the beggars will use it to fill their bellies with booze instead of beans.

It was 1997, and the man who was crouched on the sidewalk at 68th and Broadway in New York City was one of the most pathetic souls I’d ever seen. His limbs were twisted in what appeared to be arthritic agony and tears were streaming down his face. “Please,” he whimpered. “Please, somebody help me.”Most passers-by did what they were named for, but my wife and I stopped. The man looked up. “Please,” he sobbed. “I just want to go home.” My hand needed no guidance from my brain as it reached into my wallet and extracted $10. “Thank you,” he said as I handed him the money. “Thank you so much.” My wife and I mumbled some embarrassed words and walked on.

We hadn’t gone a block when she tugged my sleeve. “Maybe we should have gotten him into a cab,” she said. “He could barely stand up. He might need help. We should go back to see.” My wife is the patron saint of lost kittens and there is no arguing, so we went back to see. And what we saw was our horribly crippled friend walking briskly and happily up 68th Street, opening the door to a late-model car, getting in and driving away after what was apparently a short day of theatrical work.I know two things now that I didn’t know then.First, I now know that my hand did what human hands were designed to do. Research suggests that we are hard-wired with a strong and intuitive moral impulse —- an urge to help others that is every bit as basic as the selfish urges that get all the press. Infants as young as 18 months will spontaneously comfort those who appear distressed and help those who are having difficulty retrieving or balancing objects. Chimpanzees will do the same, though not so reliably, which has led scientists to speculate about the precise point in our evolutionary history at which we became the “hypercooperative” species that out-nices the rest.The second thing I know now that I didn’t know then is that this was the most damaging crime I had ever experienced. Like most residents of large cities, I’d been a victim before —- of burglary once, of vandalism several times. But this was different. The burglars and vandals had taken advantage of my forgetfulness (“Why didn’t I double lock the door?”) and taught me to be better.

But the actor on 68th Street had taken advantage of my helpfulness and taught me to be worse. The hand that had automatically reached for my wallet had been slapped, and once slapped was twice shy. I’ve never again given money to a stranger without scrutinizing him for the signs that distinguish suffering from its imitation. And because I don’t know what those signs are, I typically just walk by

.

Me too, and that’s sad, as some of those people are probably truly hungry. But, like Gilbert’s hand, I was once bitten, twice shy, learning never to trust sad eyes again, thinking that what they were really after was the thing that kept them out there and that they needed to get away from.

Monday, August 18, 2008

A lot of people weighed in about the secret to winning, which was raised by Gerry Spence (who wrote about it here and here) and forwarded by Gideon of A Public Defender. I added my own thoughts here, but thought of something else, after thinking back on a book I read last year, Daniel Gilbert’s Stumbling on Happiness.

Most of us spend our lives steering ourselves toward the best of all possible futures, only to find that tomorrow rarely turns out as we had presumed. Why? As Harvard psychologist Daniel Gilbert explains, when people try to imagine what the future will hold, they make some basic and consistent mistakes. Just as memory plays tricks on us when we try to look backward in time, so does imagination play tricks when we try to look forward.

But what does the quest for happiness have to do with the secret to winning? Well, we all imagine ourselves holding the secret to winning, whether we’ve won as many jury trials as Gerry Spence or, um, me.

But what’s the simple secret that no one else has touched on yet?

Let’s go back to Gilbert’s book. Wikipedia summarizes its thesis like this:

Gilbert's central thesis is that people imagine the future poorly, in particular what will make them happy. He argues that imagination fails in three ways:[1] 1. Imagination tends to add and remove details, but people do not realize that key details may be fabricated or missing from the imagined scenario. 2. Imagined futures (and pasts) are more like the present than they actually will be (or were). 3. Imagination fails to realize that things will feel differently once they actually happen -- most notably, the psychological immune system will make bad things feel not so bad as they are imagined to feel.

The advice Gilbert offers is to use other people's experiences to predict the future, instead of imagining it. It is surprising how similar people are in much of their experiences, he says. He does not expect too many people to heed this advice, as our culture, accompanied by various thinking tendencies, is against this method of decision making.

Did you catch that? Gilbert believes that we should use other people’s experiences to predict the future, concentrating on what we have in common and admitting that our experiences are likely going to mirror theirs in significantly. But he also believes that most of us won’t heed this advice as our culture “is against this method of decision making.” So what’s the secret to winning? Stop imagining how great you’ll be one day and start talking to people who have been down the path you’re taking. Talk to people who’ve been there rather than imagining how great you’ll be once you get up to the plate.

It’s the secret to both happiness and winning.

It’s what Gerry Spence has put together at TLC and at seminars across the country. It’s what they teach at NCDC and what Terry and Terry MacCarthy will talk about next month at the NCDAA seminar in Omaha.

And it’s what we can do as criminal defense lawyers and blawgers, by sharing what’s worked for us and what we learned the hard way, but learned from nonetheless. Some of us hold the secrets but all of us need them if we are to truly win. The secret to winning as criminal defense lawyers is talking and sharing.

I know we're all pretty small in the big scheme of things, and I suppose the most you can hope for is to make some kind of difference, but what kind of difference have I made? What in the world is better because of me?

Reminds me of Gerry Spence’s question, asked in Win Your Case, about whether the appropriate response to our lives, at their very end will be “so what?” In other words, what did we stand for, what’s better because of us?

What I love about that scene in “About Schmidt” is that it shows how a middle-aged insurance executive from Omaha can connect with a young boy from Kenya, so much that it moves him to tears, despite his naive belief that somehow the check will arrive and Ndugu will rush off to the bank (a prominent image from Warren’s world as the First National Tower has recently surpassed Warren’s former building as the highest landmark on Omaha’s skyline) to “get something to eat.”

While the movie is obviously a critique of Warren, I love the way it doesn’t melodramatize him. Despite his faults and misconceptions about what life is like for a young boy in Africa, he still feels a human connection to this soul a few thousand miles, several generations and lots of dollars away from him.

That is the most touching scene in the movie to me and the most hopeful. It’s not too late for this man to make something in the world “better because of” himself. , He’s just not sure how to go about making it happen, so sending a check to Save the Children and believing that when it arrives it fills both the belly and heart of a young kid is what he does and believes in.

But does the check “make some kind of difference” or “make something in the world better because of me” as Warren wonders?

I don’t know and am sure it depends on the organization. I have my doubts which are based not on fact but on images and stories, like the scene I see every day when I walk across the United Way parking lot and pass an ironic sign that says “UWM Employee Parking Only” planted directly in front of a Saab convertible.

A couple weeks ago, my uncle and his wife stopped by the house. He’s an uncle I haven’t known very well as his job with Boeing and base in Seattle meant he didn’t get back to Nebraska often. But talking to him is like talking to a long-lost brother, or, um, uncle. I don’t know him very well but can tell that despite our years apart, we’re very much alike.

He and his wife, Joanruth, soon told us about a project they’re raising money for in Kenya. They described their excitement about being able to save lives, literally, by raising money for a clean water supply in a village called Kunya.

When I told them that I’m hesitant to give to charities because of the Saab convertible I walk by every day, parked in the United Way parking lot, they laughed and said that they learned, during their stay in Africa, that the joke among the people was that the “aid” organizations drove around in Land Rovers and the money appeared to go more for wheels than water. I wondered how many kids or how many gallons of clean drinking water the optional leather upholstery would have provided.

And they told of finding a calling after retirement, the kind Warren Schmidt likely longs for, because, as Joanruth put it, “where can you see your efforts actually save real people’s lives.” As it states on their website:

"It's only by the luck of the draw that we were born in the U.S. and that our friends in Kunya were born to the deprivations they face.

We feel extraordinarily lucky in our lives and want to make a difference to those who are not. There are a lot of needs [dying starfish?] in the world, and we can't solve them all---but we can solve this one and make a life-saving difference for thousands of people.

We lived and worked in Kenya for three months in 2007, and from that experience came the Friends of Kunya."

This struck a chord with me because it’s what made me stay at the Public Defender’s Office for so long. I realized that it was only “by the luck of the draw” that I wasn’t born into the lives of my clients. I loved it because I felt like I could make an amazing difference for someone if I simply cared and tried. Granted, people didn’t change very often but when they did I occasionally got to feel like the little boy in the starfish story who says, “I made a big difference for that one.” Have you heard this story, first told by Loren Eisely in which he:

... was walking along the ocean ... one morning.... after a storm had subsided and ... he noticed that thousands of starfish had been washed up on the beach. [He then saw] a little boy, gazing fixedly at an object in the sand. Eventually, he flung the object far beyond the breaking surf.

Eiseley went up to him and asked, "Son, what are you doing?" The little boy answered, "I'm throwing starfish back into the sea because if I don't they're going to die."

[Eisley said,] "But there are thousands of starfish. In the larger scheme of things you're not going to make much of a difference to all these starfish."

The little boy looked up at him, stooped down again to pick up another starfish and, gently but quickly, flung it back into the ocean. "It's going to make a big difference to that one."

My Uncle Dick and his wife Joanruth then told me about living in Kenya for three months with no running water, showing me pictures of “drinking water” the color of toxic waste and of how they learned that what they thought they truly needed, such as electricity or a working toilet, they really didn’t. They described this as something nice to come home to but also something they learned to appreciate once they lived without it for awhile.

And they showed me a brochure they put together and told me about a website some friends helped them put together. They told me how, unlike other organizations, in which administrative costs soon begin to siphon off funds (and buy Landrovers?) their organization sends each penny it gets directly to Kenyans with all the administrative costs provided by volunteers like themselves.

I also liked what they told me about their affiliations with churches. They described how, understandably, people who find out they spent three months in Africa believe that they “must have been on a church mission.”

But they weren’t.

Their organization is not affiliated with a church and neither was their stay in the village. I appreciated this because it shows me that their aren’t “strings attached” to the contributions and that no Kenyan child will have to pray before drinking a cup of clean water, unless he or she wants to.

Don’t get me wrong. I’m not saying that prayer is bad or that churches don’t do amazing work. I just think that, just as our founders believed a great nation was built on the separation of church and state, a great giving organization is built on the separation of aid and belief.

I know this post doesn’t fit into a law-related blawg very well. I just know that, just as my uncle and his wife heard a calling and later found a cause, perhaps there are people out there who want to help.

I wish I could go there and work, or write a huge check, but I can’t. I’ll give what I can, but thought that the least I could do was to tell this story and spread the word.

Perhaps there’s someone out there feeling, as Warren Schmidt did, “pretty small in the big scheme of things” and wanting to act on his or her wish that “the most you can hope for is to make some kind of difference.”

Maybe there’s someone who’s sick of seeing Saabs in United Way parking lots and able to give but as yet unwilling, suspicious, as I often am, about where the gift will land and who it will truly help.

Trust me; my uncle and his wife have labored in the place they’re now trying to assist. If you want to email me to talk with them directly, they’re the kind of people who would gladly call you up and answer questions about where the money will go, no matter whether you drive a Saab or a Schwinn.

They lived with the people they’re now trying to help and they’re making a real difference, ensuring that despite all the “starfish” dying on the beaches of this world that they “made a real difference for that one” village in Kenya where the water runs green instead of clear.

(If you want to give and have questions, email me at “nelawyer at cox dot net” and I will contact my uncle to find the answer)

Tuesday, August 12, 2008

What’s the secret to winning? Gerry Spence wrote a post on the subject, which prompted Gideon at A Public Defender to start a game of tag to gather other opinions. Scott Greenfield tagged me, so here goes... Since, unlike Gerry Spence, I can’t dazzle you with my own record, I’ll turn to what has stuck with me from places like NCDC, TLC, and even UNK.

Don Fiedler, who passed away recently, is a hero to me and remains a legend at NCDC where he taught for decades. When I think of winning and the secret behind it, I think of Don standing before us, telling a story about the composer Leonard Bernstein. Don doesn’t just tell the story, he acts it out, taking on the characters, showing us the scene in which the maestro is asked and then answers questions, not about winning, but about what his favorite moment is as a composer.

Don first acts out an observer asking Bernstein, “Is it the end of a great performance, Maestro?”... “No,” says the accented, thoughtful composer, after first pausing to consider it.

“Is it the moment you take the stage and first wield the baton, sir?”... “No,” he says again, after first looking into space, pausing to consider it.

“What is it then, Maestro? Will you please tell us your finest moment as an artist?”

“I’d have to say,” says Don as Bernstein, “it’s that moment, when I’m in my study, and the notes fall perfectly into place, that moment when I hear, for the very first time, what I’ve been looking for, the perfect ‘ba, ba, ba, boom.” Once I discover those perfect notes, the rest of the music flows.”

Don goes on to tell us that we have to look for something similar to win our cases, the perfect theme that summarizes our client’s story, upon which our cases are built. . The way Don commits himself to telling this story makes us want to not only win, but to be as playful and heartfelt along the way as the old man standing before us who clearly loves being a criminal defense lawyer almost as much as being able to show us what he’s learned along the way.

We hear that the moment we are to strive for doesn’t come in the courtroom spontaneously. It comes through hard work, in our “studies” where we both work and play, working like artists examining real life rather than as scientists carving up a cadaver. It’s not enough to have talent, we learn; we must combine talent, work and even luck, until the muse visits us and gives us that perfect string of notes, that theme, that builds our case, uncovers our client’s stories, and gets us to “not guilty.”

I really didn’t do justice to the way Don told this story, but it was magical. Because of the commitment of the storyteller, I’ll never forget the story. Because I can’t forget the story, it’s lesson remains as well:

Work hard, behind the scenes, until the performance on the stage looks effortless and perfectly summarizes your client’s story for the jury.

Some day soon I’ll describe the rest of this story, how at NCDC and at TLC we learned that the way to get to the “ba, ba, ba, boom” Don Fiedler described was to discover our client’s stories. I don’t mean that we make them up, only that we realize that the police report is nothing more than a story, the one the officer observed and shaped, the one the prosecutor took as truth and the one she’ll tell at trial.

Only when we refuse to be defined by this “story” and discover the real story behind our client’s sometimes rough exteriors will we discover the secret to winning.

I wish I knew how to get there every time, but I haven’t learned that secret yet. Until I get there, I fall back on the words of my poetry teacher, another Don, who described winning the way I’ve experienced it:

I fight to keep the bastards from winning. The bastards keep winning, and I keep fighting.

Monday, August 11, 2008

Last week, as I wait outside my wife’s building to pick her up at the end of the day, I roll the windows down and let the beautiful day roll in. I hear people laugh but when I look around, see no one on the sidewalk. After about the third time, I step out of the car and see, high above me, two guys dangling from ropes holding five gallon buckets, washing windows as they slowly drop down the building’s side.

One seems focused on his work, but the other works faster, wiping two windows at a time, squeegee-ing them off and then kicking hard off the side of the building, releasing slack when about five feet off the side, rappelling down to the next level of windows. While he works, he also pauses and yells at his friend, even sings loud, mixing play with work while about halfway down a ten story building.

Seeing me look up, a couple other people do likewise, and we watch the guy laugh and mess around above us, dripping soapy water down when he kicks off and moves down. As I watch him have fun with his work, I wish for a second that it was me up there. Then I remember that he hangs by a thin rope, one slip away from falling as fast as the water he spills. As fun at it looks, it’s a high stakes game he’s playing, without a net.

But he makes it look so fun that the people outside the bank look up with envy, perhaps on their way back to their cubicles.

For me, it reminds me of what I read the night before and thus I’m not surprised that these guys laugh and seem to play while doing something deadly and unforgiving. Here’s what Laurence Gonzales writes about the way humor and play can help us make better decisions when we’re under severe stress:

Emotion is the source of both success and failure at selecting correct action at the crucial moment. To survive, you must develop secondary emotions that function in a strategic balance with reason. One way to promote that balance is humor.

Every pursuit has its own subculture, from hang gliders and steep creek boaters to cavers and mountain bikers. I love their dark and private humor, those ritual moments of homage to the organism, which return us to a protective state of cool. It unequivocally separates the living from the dead....

It sounds cruel, but survivors laugh and play, and even in the most horrible situations- perhaps especially in those situations- they continue to laugh and play. ... There is evidence that laughter can send chemical signals to actively inhibit the firing of nerves in the amygdala, thereby dampening fear.

Before I’d read this, this guy would have seemed crazy to me, but his play now made sense. He wasn’t failing to take his job seriously, he just realized that what he was doing was too important to be taken too seriously. Play not only makes it more fun, it also, ironically, made it more safe.

P.S.: Mark Bennett at Defending People blogged about Gonzales’ book long before I did. (Check out his posts here and here. ) I’m sure I read these posts, but didn’t put the source together until I heard Gonzales interviewed on NPR. Like GTD and Eckhart Tolle, I finally heard about these books so many times that I had to pick them up.

Sunday, August 10, 2008

Scott Greenfield at Simple Justice found my two posts about Road Rage and recommended them via links. I appreciate that, as I did work hard on these posts, even though I gave the second one a ridiculous title in an attempt to provide a little comic relief to a deep, exhausting subject.

[FYI: “Electric Bugaloo” is the name of a really bad sequel an 80’s movie called Breakdance, which likely makes the joke even less “funny.”]

The nice thing about choosing which stories about yourself get posted on the web is that you get to pick the times you say, “You doin’ o.k?” and to leave out the times you said something that wouldn’t make it past the censors on network t.v. But I’ve been down that road plenty of times too. In fact, I wrote this as a follow up to a comment at my first post on Road Rage:

The truth is if I would have arrived a few seconds later I might have seen it just like the lady did and acted the same way.

I wish I could blame stuff like this on "those people" but I've been one of "them" before too. Wasn't it Pogo who famously said "we have met the enemy and he is us?"

As I said in a previous post, I’ve been reading Eckhart Tolle’s A New Earth and have tried to focus on my own anger more rather than hypocritically using it to condemn other who are acting out of it. In fact, it was a comment I wrote on Greenfield’s blog, that made me want to start taking myself and my own causes less seriously. Sometimes, at least for me, it takes seeing my thoughts in print before I realize how irrational they are. It’s those times I wish I wouldn’t have hit “post,” and would have done the email equivalent of leaving the angry letter on the shelf overnight before dropping it in the mail.

he's likely revealing both the way he operated as a Public "Defender" as well as a desire to show his new colleagues that he wasn't placed where he rightfully belonged right out of law school but was simply performing the academic equivalent of a peace corps mission: working alongside the public school lawyers, among the natives, to add that anthropological experience to the cv and have a nice cocktail party opener.

I wrote that because a guy named Dan Filler wrote this line about criminal defense lawyers in a post about the Supreme Court’s recent Heller decision:

“Defense lawyers may have fun with Heller for a while but I suspect that they'll soon discover little to play with, and they'll return to the bread and butter. Dramatic closings; perilous cross-examination; and of course plea bargain after plea bargain after plea bargain.”

I don’t know what set me off so much about that comment, but, as I re-read it, it’s obvious my response is more about me than him. I still don’t agree with his patronizing assessment, and wonder how he operated a a p.d., but I still protested too much in response. In fact, it was Greenfield’s response to my comment that made me reread and reconsider it. He wasn’t being critical, but his phrase “ouch. I could hear that slap all the way in New York” made me reconsider whether my take on Filler’s comment was appropriate or the equivalent of web-based “road rage.”

Since I didn’t even bother to read his whole post before reacting to it, I took it as the latter, which likely got me thinking about the subject. “Angry all the time” is not only a great song by Bruce Robison, it’s also a bad way to live and a worse way to operate as a criminal defense lawyer.

Friday, August 8, 2008

Last year, riding with my wife on the way to pick up my kids after middle school, a mini van pulls behind us. I can tell the driver is upset as she drives close behind me. But she goes further than a typical tailgater, weaving back and forth. When I don’t react, and just keep driving, the speed limit mind you, she starts waving her hands at me. I turn a few times, driving through a neighborhood by the school, and she stays right behind me. When I make the last turn, moving down the driveway in front of the school, she’s still there, still waving her hands at me, acting crazy.

My wife laughs as the lady drives on by as we pull into a spot, parking just a few car lengths ahead of us, in the fire lane where the school buses usually sit. She laughs because she sees that the lady will have to walk up to the school about the same time I will and it’s funny to think that the crazy lady will have to face the people she thought were just some random drivers. Turns out our kids are probably friends, attending the same aftercare program.

As I look at her, I start to think that it’s now my turn to be mad, to teach her that she shouldn’t act so crazy, especially when she drives by the school her own kids attend, along with mine.

I want to yell at her, to embarrass her if that’s what it takes, to teach her a lesson about not driving crazy around my kids. I think about the times when I’ve been this angry, about the time when I demanded of the confused lady on the phone, who mumbled and then finally asked me “who is this?”, that “you called me lady!” only to find out she was the mother of my brother’s best friend, calling to tell us Mark had been killed in a drunk driving accident.

But she looks down ground as she walks in my direction, already looking defeated. When she finally glances up, I avoid the temptation to ask her who the hell she thinks she is and instead hear myself ask her, “you doin’ o.k.?”

“No,” is all she says, almost whining, her body language telling me she’s desperate but not yet ready to talk about it. We walk in together, her walking in front, saying nothing. Once inside, we find ourselves standing together awkwardly, as our kids gather up their things. The effect of the kids on the adults is a little like that of Scout on the mob in To Kill A Mockingbird, when she says, “Tell Walter I said ‘hey.’” Pretty soon we’re not so riled up and, like the mob, just want to go home.

My wife joins us now and, as we stand there together silently, we recognize her kids from past pickups, the tension draining out of our postures as we wait. The lady’s anger seems to have surrendered when placed under the lights. My wife, sensing that things have cooled down, that there’s no need for lessons, gives the lady a look that says, “you may be crazy, but it’s o.k.”

Then the lady looks at us, stressed and embarrassed, and says, “I’m sorry.” “It’s just... there’s been, um, there’s been a.... we lost someone in our family and we really have to get home.” Then she turns to the kids, tells them to hurry, and obviously wants this scene to be over. But my wife won’t let it go so she walks up beside the lady, ignoring her pose that says, “leave me alone now.”

When the lady turns toward her, still silently saying, “I want this to be done,” my wife ignores it and stands there, demanding a hug. When the lady sees this, she gives in, hugs her back hard and the kids look up wondering what could have made these two adults hug for a long time in the middle of a middle school library, crying together.

As I look on, at this surreal scene that began with road rage and ended in embrace, I think of the quote Mr. Rogers carried in his wallet, described in The World According to Mr. Rogers, learning a lesson instead of teaching one to someone else. His favorite quote reads:

Thursday, August 7, 2008

Last week, as I drove home from court in an outlying county, I caught an NPR interview (link to older interview) with Laurence Gonzales, author of Deep Survival: Who Lives, Who Dies, and Why. What first caught my attention was Gonzales’ view of what most often gets men into trouble when their survival depends on them making no false moves. What gets us into trouble? Sadly, Gonzales says, it’s testosterone, inexperience with the outdoors and even testosterone. We often fail to think, when we truly need to, and often assume unnecessary risks that make us, well, dead. He describes, in an earlier article:

Accidents are bound to happen. But they don’t have to happen to you if you recognize your role in a system. Driving bumper to bumper at highway speeds, waiting for someone to tap his brakes and start a chain reaction accident is one example. Having a retirement account heavily invested in the stock market is another. A small move by a few investors can send everyone stampeding for the door. Being aware of such systems and analyzing the forces involved can often reveal that we’re doing something much riskier than it seems.

As I was driving at the time, likely talking on my cell or navigating my ipod for that one special song or podcast, what also caught my attention was Gonzales’ description of how dangerous driving truly is. He also said of driving:

- If it was invented today it would be outlawed tomorrow due to the number of deaths and injuries. - If we weren’t so used to the risks, we would drive with helmets, thus at least reducing the risk the way we’ve begun to do with bicycles. - When we invent a safety feature, like anti-lock brakes, we tend to over-rely on its effectiveness, thinking that technological advances allow us to take more risks rather than eliminating existing risks.

At night, I’m sometimes awakened by the sound of revving engines on what I think of as “donor bikes.” My friend, the doctor, told me that’s what the employees in the organ donor departments called them, and the term was hard to forget, as well as the source. He also told me he was surprised to see doctors wearing boots, the high kind farmers wear to irrigate corn, and then found out they were the surgeons who harvested organs and did transplants. Another image that’s difficult to forget.

So, with Gonzales’ descriptions of the risks of driving as a lead-in, and with the subtitle “Who Lives, who Dies and Why” in mind, I ordered the book from the library. Last night I went to pick it up, letting my 12-year old ride in the front seat, despite the air bag risk that usually had me making her sit in the back. We were only going a couple miles and the risk would be worth it, I assumed.

Everything’s fine; we made it home o.k., but, as we waited at a stoplight, I heard, and then saw, two of these “donor bikes” flying down the street that we waited to cross. One burst out ahead and the other came on even faster, trying to catch his friend. This burst of speed made his shirt fly up his back as he crossed our windshield. Then, as he went over the hill, his bike began to shimmy, as if he’d lost control. His friend had slowed in front of him, just as he sped up and, as he steered away, he sat up, off the bike, as it shifted back and forth, violently, on the verge of going down hard.

At first I thought he was having fun, scaring his friend, but he kept it up too long, shaking back and forth too far, just as he went over down the hill and out of my sight. I didn’t think, I just yelled what came to mind, “Oh God, No, he’s going down!” I saw the friend turn and look ahead, where I couldn’t see, seemingly alarmed too. My daughter screamed back at me, asking what I saw, unused to having to look at other cars as we rode. I screamed, “No! No! No!, shocked, thinking that I’d just seen a kid turn from having fun to becoming a road stain in seconds. I thought that down that hill lay a rolled bike, a skinny kid wearing a sleeveless tee and shorts become at least a severe road rash victim on his way to the hospital. Perhaps worse.

But no one else was around. No one had really seen anything, it seemed. As we sat there, in the right hand lane, unable to turn and go down there, screaming back and forth, trying to explain what we thought we’d just seen, the cars came up from behind. I looked at the driver beside me but he’d arrived too late, hadn’t seen anything. I saw cars begin turning in the kid’s direction and wondered what kind of horrors they would see ahead. I wanted people to stop, but they kept going, oblivious and distracted.

I saw several cars going that way and thought that while I should go down there too, I’d likely arrive too late to be any help. (What was I going to do, lecture them on the law? Defend them for reckless driving? Tell them not to incriminate themselves Post-Miranda?!) And I thought of my daughter and not wanting her to see the blood, to have to remember what speed and risk could do to a kid.

So I went straight, not knowing what else to do. I hesitated, though, still shocked at how quickly fun can turn into pain. And then I saw her. The woman in the white corolla right behind me, shaking her hands at my face in the rearview mirror, telling me to get my ass in gear. I pointed to place the kid had gone, thinking somehow that she’d figure out, perhaps from the reactions of the cars going down there, what I’d just seen and why I wasn’t moving fast.

But she screamed even more, her hands flying up at her windshield, yelling at me for holding her up for those few seconds, those few car lengths of time. I went forward a block and turned onto the first side street, to get out of her way and collect my thoughts, to decide whether to go back, describe what I saw, or just take my kid home.

But as I turned, my jaw still open from the likely wreck that cut across the screen of my windshield, the lady in the white corolla pulled beside me. She raise any fingers, but she had a lot of words for my daughter and me, none audible through the layers of glass that held our voices inside. I just looked at her, stunned, hoping she might see what she just missed, that a guy was likely dying and that we’d witnessed what she narrowly missed.

She drove on and my daughter demanded that we go back, saying she had to see if he was alright, if there was anything we could do. She promised to close her eyes if it was bad and we went back, turning slowly down the street, expecting sirens, people stopped, even blood-stained streets.

She kept her eyes open though and we saw nothing except some moving cars and two bikes going over the next hill slowly. She wondered if they were the same ones, but it had been too long, unless they’d stopped in the meantime.

There were no stopped cars and no wrecked bikes. I guessed the kid had pulled out of his near wreck somehow, or slowed enough that he could get right back on. I wondered if maybe he was just having fun, making it look like he was going down, messing with the people in “cages” (as the real bikers call cars) just messing with his friend and those looking on. But he was just a kid, so I guessed that he’d just been lucky, pulled out of it, perhaps learning a lesson in the near miss.

We drove home in silence and, arriving, couldn’t recreate the scene very well, both finding that our words didn’t do the live event, the shock, justice.

But when we talked later about having fun and balancing risk, she listened hard. When I read the book later, I hoped the lesson had sunk in and that she could understand a little more about “who lives, who dies and why” and get through those years when kids tend to think it won’t ever happen to them.

But the lady in the white corolla will drive on, oblivious and angry, unaware of her proximity to tragedy and of how those few, insignificant seconds she still stewed over were almost the difference between life and death for a kid on a bike and a unforgettable image for those looking on.

About Me

I am a criminal defense lawyer in Omaha and these are my thoughts on law, politics and art. Disagree with me? Am I dead wrong? Have your own two cents to add? Leave a comment and let's discuss it. Thanks for stopping by.